-CAB Dodson v. Bourland et al, No. 3:2010cv01474 - Document 4 (S.D. Cal. 2010)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis, imposing initial partial filing fee and garnishing balance from prisoner's trust account puursant to 28 USC 1915(a); Denying 3 Motion for order directing the filing of complaint nunc pro tunc without prejudice; and directing U.S. Marshal to effect service of complaint pursuant to Fed.R.Civ.P.4(c)(3) & 28 USC 1915(d). (Order electronically transmitted to Matthew Cate, Secretary CDCR). (ifp package prepared).Signed by Judge John A. Houston on 10/06/10. (All non-registered users served via U.S. Mail Service)(jpp)
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-CAB Dodson v. Bourland et al Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TYUN S. DODSON, CDCR #K-04510, Civil No. Plaintiff, 12 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING INITIAL PARTIAL FILING FEE AND GARNISHING BALANCE FROM PRISONER’S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]; 13 14 15 vs. 16 17 18 19 20 21 22 10-1474 JAH (CAB) (2) DENYING PLAINTIFF’S MOTION FOR ORDER DIRECTING THE FILING OF COMPLAINT NUNC PRO TUNC WITHOUT PREJUDICE [Doc. No. 3] M.E. BOURLAND; G.J. JANDA; T. OCHOA; D.D. SHEPPARD-BROOKS; C. NICOLLS; M. SMITH; A. QUINONES; JOHN DOE; M.D. GREENWOOD; and H. MORA, AND (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) Defendants. 23 24 25 26 Tyun S. Dodson (“Plaintiff”), a state prisoner currently incarcerated at California State 27 Prison Substance Abuse and Treatment Facility in Corcoran (“SATF”), California, and 28 proceeding in pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. 1 10cv1474 Dockets.Justia.com 1 Plaintiff claims prison officials at Calipatria and Corcoran State Prisons violated his rights 2 to due process at a disciplinary hearing, subsequent re-hearings and classification committee 3 review hearings, all of which allegedly resulted in his serving a Security Housing Unit (“SHU”) 4 term of more than 500 days. (Compl. at 4-17.) Plaintiff further alleges Defendants conspired 5 and retaliated against him for exercising his First Amendment rights by improperly processing 6 one of his CDC 602 inmate appeals and by fabricating criminal charges against him. (Id. at 17- 7 25.) Plaintiff seeks injunctive relief as well as compensatory and punitive damages. (Id. at 27.) 8 Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a) when he 9 filed this action; instead he has submitted a Motion to Proceed In Forma Pauperis (“IFP”) 10 pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. Plaintiff has also submitted a “Motion for Nunc 11 Pro Tunc Filing of Civil Complaint” [Doc. No. 3] requesting that the Court “relate” his 12 Complaint, which was received by the Court on July 14, 2010, back to April 8, 2010, the date 13 he alleges to have originally handed his pleading over to correctional staff at SATF for mailing. 14 See Pl.’s Mem. of P&As in Supp. of Mot. [Doc. No. 3] at 5-6. 15 I. 16 MOTION TO PROCEED IFP 17 All parties instituting any civil action, suit or proceeding in a district court of the United 18 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 19 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 20 only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 21 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP 22 remains obligated to pay the entire fee in installments, regardless of whether his action is 23 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 24 (9th Cir. 2002). 25 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 26 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 27 statement (or institutional equivalent) for the prisoner for the six-month period immediately 28 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 2 10cv1474 1 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 2 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 3 (b) the average monthly balance in the account for the past six months, whichever is greater, 4 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 5 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 6 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 7 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 8 § 1915(b)(2). 9 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust account 10 statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 11 1119. This statement shows an available balance of $4.04 as of March 29, 2010, an average 12 monthly balance of $26.90 and average monthly deposits of $42.96. Based on this financial 13 information, the Court GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 2] and assesses 14 an initial partial filing fee of $8.59 pursuant to 28 U.S.C. § 1915(b)(1). 15 However, the Secretary for the California Department of Corrections and Rehabilitation 16 or his designee, shall collect this initial fee only if sufficient funds in Plaintiff’s account are 17 available at the time this Order is executed pursuant to the directions set forth below. See 28 18 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing 19 a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has 20 no assets and no means by which to pay the initial partial filing fee.”); Taylor v. Delatoore, 281 21 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 22 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack 23 of funds available to him when payment is ordered.”). The remaining balance shall be collected 24 and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth 25 in 28 U.S.C. § 1915(b)(1). 26 /// 27 /// 28 /// 3 10cv1474 1 II. 2 MOTION FOR NUNC PRO TUNC FILING OF COMPLAINT 3 Plaintiff has also filed a Motion and Declaration requesting that the Court consider his 4 Complaint filed nunc pro tunc to April 8, 2010, the date he alleges to have given it to a 5 correctional officer at SATF for mailing. See Pl.’s Decl. in Supp. of Motion [Doc. No. 3] at 4 6 ¶ 2; see also Houston v. Lack, 487 U.S. 266, 270-72, 276 (1988) (prison “mailbox rule,” 7 provides that notices of appeal submitted by pro se prisoners are considered filed on the date 8 they are delivered to prison authorities for forwarding to the district court); Douglas v. Noelle, 9 567 F.3d 1103, 1107 (9th Cir. 2009) (“mailbox rule” applies to filing of § 1983 complaints). 10 Thus, while his Complaint was not received by the Clerk until July 14, 2010, Plaintiff seeks to 11 have it deemed “filed” as much as three months earlier, worried that he “is surely past the 12 statutory time for filing at least one cause of action.” See Pl.’s Decl. in Supp. of Mot. at 4 ¶ 6. 13 Because it is not clear from the face of Plaintiff’s Complaint which, if any, of his claims 14 may be time-barred, see Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (court 15 may dismiss complaint as untimely only if the allegations in the complaint, construed with the 16 required liberality, would not permit the plaintiff to prove that the statute was tolled), and the 17 running of the statute of limitations period is not a pleading requirement, but rather, an 18 affirmative defense, see FED.R.CIV.P. 8(c)(1); Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 19 2003), the Court DENIES Plaintiff’s Motion for Nunc Pro Tunc Filing without prejudice as 20 premature. 21 III. 22 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 23 The PLRA also obligates the Court to review complaints filed by all persons proceeding 24 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 25 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 26 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 27 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 28 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, 4 10cv1474 1 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 2 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126- 3 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) 4 (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 5 § 1915A). 6 “[W]hen determining whether a complaint states a claim, a court must accept as true all 7 allegations of material fact and must construe those facts in the light most favorable to the 8 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 9 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 10 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 11 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 12 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a 13 pro se civil rights complaint, the court may not “supply essential elements of claims that were 14 not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th 15 Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations 16 are not sufficient to withstand a motion to dismiss.” Id. 17 As currently pleaded, the Court finds Plaintiff’s allegations sufficient to survive the sua 18 sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).1 See Lopez, 203 F.3d at 19 1126-27. Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his behalf. 20 See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform 21 all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made 22 by a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma 23 pauperis under 28 U.S.C. § 1915.”). 24 /// 25 /// 26 /// 27 1 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 5 10cv1474 1 IV. 2 CONCLUSION AND ORDER 3 Good cause appearing therefor, IT IS HEREBY ORDERED that: 4 1. 5 Plaintiff’s Motion for Nunc Pro Tunc Filing [Doc. No. 3] is DENIED without prejudice as premature. 6 2. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] 7 is GRANTED. 8 3. The Secretary of the California Department of Corrections and Rehabilitation, or 9 his designee, is ordered to collect the $8.59 initial partial filing fee assessed by this Order and 10 forward that amount to the Clerk of Court, if those funds are available at the time this Order 11 is executed. THE INITIAL PARTIAL FILING FEE SHALL BE CLEARLY IDENTIFIED BY 12 THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 4. 13 The Secretary of the California Department of Corrections and Rehabilitation, or 14 his designee, is ordered to collect from Plaintiff’s prison trust account the balance of the $350 15 filing fee owed in this case by collecting monthly payments from Plaintiff’s prison trust account 16 in an amount equal to twenty percent (20%) of the preceding month’s income credited to the 17 account and forward payments to the Clerk of the Court each time the amount in the account 18 exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL MONTHLY PAYMENTS 19 SHALL BE CLEARLY IDENTIFIED BY THAT NAME AND NUMBER ASSIGNED TO 20 THIS ACTION. 21 5. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, 22 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 23 Sacramento, California 95814. 24 /// 25 /// 26 /// 27 /// 28 /// 6 10cv1474 1 IT IS FURTHER ORDERED that: 2 6. The Clerk shall issue a summons as to Plaintiff’s Complaint [Doc. No. 1] upon 3 Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for 4 each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order 5 and a certified copy of his Complaint and the summons so that he may serve Defendants.2 Upon 6 receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and 7 accurately as possible, and to return them to the United States Marshal according to the 8 instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt, 9 the U.S. Marshal shall serve a copy of the Complaint and summons upon Defendants as directed 10 by Plaintiff on the USM Form 285s. All costs of service shall be advanced by the United States. 11 See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 7. 12 Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within the 13 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 14 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to 15 reply to any action brought by a prisoner confined in any jail, prison, or other correctional 16 facility under section 1983,” once the Court has conducted its sua sponte screening pursuant to 17 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based 18 on 19 the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the 20 merits,” the defendant is required to respond). 21 22 23 24 25 26 27 28 2 Plaintiff must, of course, identify the John Doe correctional officer he includes as a Defendant in his Complaint by his true name and thereafter substitute that individual person for the currently unknown officer by amending his pleading to name that person before the United States Marshal will be able to execute service upon him. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be identified and served within 120 days of the commencement of the action against them); FED.R.CIV.P. 15(c) & 4(m). Generally, the use of Doe-type appellations to identify defendants is not favored, because as a practical matter, it is in most instances impossible for the United States Marshal to serve a summons and complaint upon an unknown Doe defendant. However, the Court will not dismiss Plaintiff’s claims against the unknown correctional officer at this time. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)) (where identity of alleged defendants will not be known prior to filing of complaint, plaintiff should be given an opportunity through discovery and amend his complaint to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds). 7 10cv1474 1 8. Plaintiff shall serve upon the Defendants or, if appearance has been entered by 2 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 3 submitted for consideration of the Court. Plaintiff shall include with the original paper to be 4 filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy 5 of any document was served on Defendants, or counsel for Defendants, and the date of service. 6 Any paper received by the Court which has not been filed with the Clerk or which fails to 7 include a Certificate of Service will be disregarded. 8 9 10 DATED: October 6, 2010 _________________________________________ HON. JOHN A. HOUSTON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 10cv1474
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